BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1448


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          Date of Hearing:  May 5, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1448  
          (Lopez) - As Amended April 23, 2015


                             As Proposed to be Amended 


          SUBJECT:  clotheslines and drying racks: real property  
          restrictions


          KEY ISSUES:


          1)Should a landlord be required to permit a tenant to have an  
            energy-saving clothesline or drying rack in the tenant's  
            private area, so long as it does not interfere with property  
            maintenance or pose a safety threat? 


          2)Should a provisIon in the governing documents of a homeowners'  
            association be unenforceable if it unreasonably restricts an  
            owner from using a backyard clothesline or drying rack? 


                                      SYNOPSIS


          This modest energy conservation measure will make it easier for  
          renters and owners in a homeowners' association (HOA) to use an  








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          outdoor clothesline or drying rack in order to conserve energy  
          and cut utility costs.  The bill has ample protections for  
          landlords and HOAs. First, a landlord must approve the tenant's  
          choice of clothesline or drying rack and may impose reasonable  
          restrictions as to time and place.  Second, as for HOA owners,  
          the bill makes unenforceable any provisions in the governing  
          documents that unreasonably impairs the ability of the owner to  
          use a backyard clothesline or drying rack.  The bill specifies,  
          however, that the HOA may still impose reasonable restrictions  
          on the use of backyard clotheslines and drying racks.  
          Notwithstanding the author's effort to clarify the right of  
          landlords and HOAs to impose reasonable restrictions on the use  
          of these simple energy-saving devices, the bill is opposed by  
          landlord and HOA groups who fear that clotheslines will create  
          an eyesore and may damage property.  The author has graciously  
          agreed to amend the bill further to clarify that a tenant cannot  
          affix a clothesline to a building exterior without the  
          landlord's prior approval, even though this was probably already  
          covered under existing language.  With these amendments, the  
          primary basis for continuing opposition appears to be  
          aesthetics.  This bill is sponsored by The Utility Reform  
          Network (TURN) and supported by Conference of California Bar  
          Associations, the Consumer Federation of California, the  
          California State Grange, and the Sebastopol Grange.  The author  
          will take amendments in this Committee that are reflected in the  
          analysis. 


          SUMMARY:  Permits tenants, as well as owners in a homeowners  
          association, to use reasonable clotheslines and drying racks, as  
          specified.  Specifically, this bill:  


          1)Requires a landlord to permit a tenant to use a clothesline or  
            drying rack approved by the landlord in the tenant's private  
            area, subject to reasonable time and location restrictions, if  
            the following conditions are met:










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             a)   The clothesline or drying rack shall not interfere with  
               the maintenance of the rental property.


             b)   The clothesline or drying rack shall not create a health  
               or safety hazard, block doorways, or interfere with  
               walkways or utility service equipment. 


             c)   The tenant seeks the landlord's prior approval before  
               affixing a clothesline to a building. 


          2)Makes void and unenforceable any provision in HOA governing  
            documents that effectively prohibits or unreasonably restricts  
            a homeowner's ability to use a backyard clothesline or drying  
            rack. Specifies that nothing in this provision shall prevent  
            the HOA from establishing reasonable rules and restrictions  
            governing clotheslines or drying racks. 


          EXISTING LAW:  


          1)Regulates the terms and conditions of residential tenancies,  
            and generally requires landlords to keep the rental units in a  
            condition fit for occupancy.  (Civil Code Section 1940 et  
            seq.)
          2)Creates an implied covenant of quiet enjoyment in every lease,  
            requiring that the tenant shall not be disturbed in his or her  
            possession by the landlord.  (Civil Code Section 1927; Pierce  
            v. Nash (1954) 126 Cal.App.2d 606, 612.)


          3)Regulates the purposes for which a renter's security deposit  
            may be used, including, but not limited to, compensating the  
            landlord for default on payment of rent, cleaning or repairing  
            rented property, exclusive of normal wear and tear, or  
            remedying future obligations under the rental agreement, as  








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            specified.  (Code of Civil Procedure Section 1950.5 (a)-(e).)


          4)Permits the governing board of a HOA to adopt operating rules  
            that apply generally to the management and operation of the  
            common interest development or the conduct of the business and  
            affairs of HOA, provided that the rule is within the authority  
            of the board to make, does not conflict with the association's  
            articles, bylaws, or governing law, and is reasonable.  (Civil  
            Code Sections 4340 and 4350.)


          5)Provides specified limits to the authority of HOA governing  
            documents to regulate the use of a member's separate interest,  
            including provisions relating to the display of signs, the  
            installation of solar energy systems, and modification to  
            property to accommodate a disability.  (Civil Code Section  
            4700 et seq.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal. 


          COMMENTS:  This modest energy conservation and freedom of choice  
          measure will make it easier for renters and owners in a  
          homeowners' association (HOA) to make use of an outdoor  
          clothesline or drying rack in order to conserve energy and cut  
          utility costs.  The bill has ample protections for landlords and  
          HOAs.  First, a landlord must approve the tenant's choice of  
          clothesline or drying rack and may impose reasonable  
          restrictions as to time and location.  As for owners in an HOA,  
          the bill provides that any provision in the governing documents  
          that unreasonably prohibits or impairs the ability of the owner  
          to use a backyard clothesline or drying rack is unenforceable.   
          However, the bill permits the HOA to impose reasonable  
          restrictions on the use of backyard clotheslines and drying  
          racks.  The bill also makes it clear that the HOA owner's right  
          to use a clothesline or drying rack is restricted to backyard  








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          space that is for the exclusive use of the owner; there would be  
          no right under this bill to use a clothesline or drying rack in  
          any HOA common area. 


          Opponents Claims Seem Overstated Given Requirement for Landlord  
          Approval:  Many of the concerns raised by the many regional  
          apartment associations opposed to this bill appear to be already  
          addressed by the requirement that any clothesline or drying rack  
          must be "approved by the landlord" and subject to "reasonable  
          time and location restrictions."  Opponents fear, for example,  
          that tenants may attach clotheslines to buildings by drilling  
          holes or by other means that might damage the property.  Most  
          landlords, the opponents contend, prefer free-standing  
          clotheslines or drying racks to ones that are semi-permanently  
          attached.  But if the landlord must approve the clothesline,  
          presumably this means that the landlord could choose to approve  
          only freestanding clotheslines that do not entail drilling holes  
          into a building.  If the tenant drilled holes without the  
          landlord's permission, existing law would allow the landlord to  
          deduct money from the security deposit to patch them up. As  
          noted below, to address this concern the author as agreed to an  
          amendment making explicit that a clothesline cannot be affixed  
          to a building exterior without the landlord's prior approval. 


          Requiring prior approval to affix the clothesline to a building  
          will not likely remove the opposition, however.  For example,  
          opponents claim that they would support freestanding  
          clotheslines, but this claim does not square with other  
          objections raised.  For example, opponents repeatedly proclaim  
          that hanging clothes (and especially underwear, it seems) is  
          aesthetically displeasing to other tenants and the public.  But  
          if this is so, it is not clear why those clothes would be more  
          aesthetically pleasing on a freestanding clothesline than on an  
          attached one.  Other opposition arguments also appear  
          inconsistent.  For example, opponents contend at some points  
          that tenants can already use clotheslines and drying racks  
          inside of their apartments.  Putting aside the obvious drawback  








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          that refreshing sunlight and breeze cannot reach clothes hanging  
          inside, the opponents elsewhere express the fear that tenants  
          will hang clothes over areas where dripping water will damage  
          property.  But it would seem that dripping water inside the  
          building would cause more property damage than dripping water  
          outside.  Moreover, it is difficult to imagine how clothes  
          dripping in an outdoor location would cause any more damage than  
          rain. If there is such an outdoor location that cannot be  
          reached by rain and where dripping water would cause property  
          damage, the bill addresses that problem by allowing the landlord  
          to impose reasonable restrictions as to the time and location of  
          the landlord-approved clothesline.


          Necessity for Legislation.  The California Apartment Association  
          (CAA) shares many of the concerns of the several regional  
          apartment associations, but it asks a more fundamental question:  
          Why is this bill necessary?  CAA claims that most tenants can  
          already use clotheslines and drying racks and regularly work out  
          the details and permissions with landlords.  No doubt most  
          landlords and tenants settle the issue reasonably and without  
          incident, but according to the author and supporters many  
          landlords and HOAs in California do, in fact, prohibit  
          clotheslines.  The Committee does not have any evidence on  
          whether such restrictions are increasing or decreasing, but by  
          the opposition's own reckoning a fair number of landlords and  
          HOAs must prohibit outdoor clotheslines and drying racks,  
          otherwise the bill would not be necessary.  For tenants and  
          owners dealing with these landlords and HOAs, this bill may  
          permit them to have reasonably placed clotheslines and drying  
          racks. 


          Tenant Property Rights and the "Bundle of Sticks."  One of the  
          opposition letters invokes the old law-school adage that  
          property rights are best thought of as a "bundle of sticks."   
          The letter contends that one of the "sticks" enjoyed by the  
          property owner is the right to "control" the property.  Yet the  
          idea of property as a "bundle of sticks" actually supports this  








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          bill.  According to the classic formulation, the "bundle of  
          sticks" that make up property rights include the right to  
          possess; the right to exclude; the right to use or enjoy; and  
          the right to transfer or convey.  [Jesse Dukeminier & James  
          Krier, Property 93 (5th ed. 2002).]  The point of the "bundle of  
          sticks" analogy is that a property interest does not necessarily  
          entail all of those rights; the rights associated with property,  
          that is, are severable.  For example, a person with a life  
          estate has a right to possess, exclude, and use the property,  
          but lacks the right to transfer.  Though often forgotten by  
          those who invoke sanctity of property rights, a tenant enjoys  
          property rights every bit as worthy of protection as the  
          property rights of a title holder.  While the tenancy lasts, the  
          tenant has the "right to possess" stick and the "right to use"  
          stick.  The tenant even has the "right to exclude" stick as to  
          everyone but the landlord, and under California law the tenant  
          may even exclude the landlord subject to certain exceptions.   
          (See e.g. Civil Code Section 1927; Pierce v. Nash (1954) 126  
          Cal.App.2d 606, 612.)  Like the holder of a life estate the  
          tenant lacks the right to transfer.  Also like the holder of  a  
          life estate, the tenant has an obligation not to "waste" (or  
          injure) the property, which is why California landlords are  
          entitled to require a security deposit and withhold parts or all  
          of it to cover cleaning and damage costs.  (Code of Civil  
          Procedure Section 1950.5 (a)-(e).) 


          When a landlord leases property to a tenant, he or she conveys  
          certain "sticks" in the property-rights bundle while retaining  
          others.  It is not unreasonable to assume that the tenant's  
          right to use and enjoy the property includes the right to reap  
          the many personal and environmental benefits of a clothesline.   
          Indeed, the tenant might even find the clothesline aesthetically  
          pleasing.  Neighbors and members of the public might find the  
          clothesline aesthetically displeasing, but the same would be  
          true of a clothesline installed by a fee simple owner; yet no  
          one would question the fee simple owner's right to install one. 










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          Tenant Provisions Could Be Much Stronger.  Despite opposition  
          claims that this bill takes too much control away from the  
          landlord, the bill arguably cedes too much to the landlord.  The  
          bill only permits the tenant to use a clothesline or drying rack  
          that is "approved by the landlord."  This could undermine the  
          purpose of the bill, as a landlord could simply refuse every  
          reasonable request by the tenant.  The eminently reasonable  
          purpose of the bill might be better served by recasting that  
          provision.  That is, rather than requiring the clothesline or  
          drying rack to be approved by the landlord, it would be more  
          consistent with the purpose of the bill to provide that the  
          landlord shall not "unreasonably disapprove" of the tenant's use  
          of a clothesline or drying rack so long as it meets all of the  
          bill's other considerable restrictions. 


          ARGUMENTS IN SUPPORT:  The bill's sponsor, The Utility Reform  
          Network (TURN), argues that AB 1448 will "encourage and support  
          low-cost, low-tech solutions for the average citizen to keep and  
          maintain manageable utility bills."  According to TURN, there is  
          "a growing movement to allow citizens the personal freedom of  
          hang-drying their clothing, harnessing the power of the sun."   
          TURN reports that six states - Florida, Maine, Utah, Vermont,  
          Colorado, and Hawaii - have adopted statutes that override  
          contracts or covenants that prohibit the use of clotheslines.   
          Federal studies, according to TURN, show that using clothesline  
          instead of electric dryers promotes energy conservation and  
          significantly reduces the amount of carbon dioxide emitted into  
          the atmosphere.  Despite the obvious potential for monetary  
          savings and energy conservation, TURN contends that "in many  
          locations across California, Homeowners' Associations, Condo  
          Associations, and Apartment Associations deny a person's right  
          to utilize the power of the sun" by prohibiting the use of  
          clotheslines and drying racks. 


          The Conference of California Bar Associations (CCBA) supports  
          this bill for similar reasons, claiming that "studies have shown  
          that mechanical clothes dryers often use up to 10% of a  








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          household's energy consumption.  However, while existing law  
          recognizes the value of easements for energy conservation, it  
          fails to include passive solar devices, such as clotheslines,  
          which could go a long way towards reducing unnecessary energy  
          consumption."  AB 1448 is supported by the Consumer Federation  
          of California, the California State Grange, and the Sebastopol  
          Grange for substantially the same reasons as those cited by TURN  
          and CCBA.  All supporters add that the bill appropriately  
          recognizes the right of a landlord or a homeowners' association  
          to impose reasonable restrictions, so long as clotheslines and  
          drying racks are not unreasonably prohibited altogether.  


          ARGUMENTS IN OPPOSITION:  Opponents represent statewide and  
          regional associations of apartment owners and HOAs.  They argue  
          that AB 1448 will interfere with the management and  
          well-established rules of apartment complexes and community  
          interest developments.  If enacted, they claim that AB 1448  
          would "likely become the basis for new disputes as the bill's  
          right to hang laundry clashes with a property owner's concern  
          over the maintaining [of] the appearance of the property."   
          Opponents claim that there is nothing in this bill to prevent  
          persons from hanging laundry over balcony railings, affixing  
          clotheslines to building exteriors in ways that could damage the  
          property, or hanging lines or racks over areas that could be  
          harmed by dripping water.  However, for many opponents, a  
          primary objection appears to be aesthetics: "hanging clothes and  
          underwear are aesthetically displeasing to other tenants and the  
          public" and "property overrun by drying clothes is an eyesore  
          and a real nuisance to the community."  As a result, some of the  
          opponents conclude, "property values will be negatively  
          impacted, and tenants will be able to request a diminution of  
          value rent decrease from their local rent board."


          The California Apartment Association (CAA) adds that a statute  
          on this topic is unnecessary.  CAA claims that nothing in  
          current law would prevent a tenant from using freestanding  
          (unattached) clotheslines or drying racks and that "typically, a  








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          landlord and tenant are able to work out these sorts of issues  
          so long as free standing racks are discrete and not visible to  
          neighbors."  


          The Educational Community of Homeowners (ECHO), representing  
          community associations, opposes this bill unless amended, though  
          the proposed author amendments may address many of these  
          concerns.  For example, ECHO argues that the term "personal  
          energy conservation purposes" is unclear, and that therefore the  
          HOA provision should only apply to "clotheslines and drying  
          racks," as does the provision on rental property.  As noted, the  
          author has already agreed to take such an amendment in this  
          Committee.  


          Proposed Author Amendments:  Opponents contend, among other  
          things, that the use of the term "personal energy conservation  
          purposes" in the provision dealing with the HOAs could be  
          broadly construed to include things other than clotheslines and  
          drying racks, such as large solar panels.  This is not the  
          author's intent.  Therefore, the author will amend the HOA  
          provision to mirror the language of the rental provision so that  
          it refers only to "a clothesline or drying rack."  The  
          amendments also clarify that a tenant may not affix a  
          clothesline to a building without a landlord's prior permission.  
           Finally, the amendments make clarifying organizational changes.  
           Specifically, the author will take the following amendments:


             -    On page 2 line 13 after "approved" insert: , and subject  
               to reasonable time or location restrictions, 


             -    On page 2 after line 19 insert: (3) The tenant seeks the  
               landlord's prior consent before affixing a clothesline to a  
               building.  










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             -    On page 2 delete lines 20-21 


             -    On page 3 line 7 delete "the use of a homeowner's  
               backyard for" and delete lines 8-9 and insert:  a  
               homeowner's ability to use a backyard clothesline or drying  
               rack.


             -     On page 3 line 11 delete "the use of" 


             -    On page 3 line 12 delete "personal energy conservations  
               purposes, including"


             -    On page 3 line 13 delete "or any similar device" and  
               insert: drying rack 


             -    On page 3 line 15 delete "engaging" and delete lines  
               16-18 and insert: using a clothesline or drying rack.  


             -    On page 3 line 23 delete "or any similar device" and  
               insert: or drying rack


          REGISTERED SUPPORT / OPPOSITION:




          Support


          The Utility Reform Network (TURN) (sponsor)










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          Conference of California Bar Associations


          Consumer Federation of California 


          Sebastopol Grange # 306 




          Opposition


          Apartment Association of Greater Los Angeles 


          Apartment Association of Orange County 


          Apartment Association, Southern California Cities


          California Apartment Association 


          East Bay Rental Housing Association 


          Educational Community for Homeowners (ECHO)


          Nor Cal Rental Property Association 


          North Valley Property Owners Association 


          Western Manufactured Housing Communities Association 








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          Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334